III (B) Estate on Special Limitation. Sec. 90. Nature of special limitation

An estate on special limitation resembles an estate on condition subsequent in that, while it may continue for the natural duration of an estate in fee simple, in fee tail, for life, or for years, it may possibly terminate before the end of such period, owing to the happening of a contingency named. There is, however, a fundamental distinction between an estate on condition and one on special limitation, in that, while in the former case the words which provide for the termination of the estate on a contingency are not regarded as a part of the original limitation of the estate, but are considered to provide for the cutting off of the estate before its proper termination, in the case of an estate on special limitation the words of contingency are regarded as a part of the limitation itself, and so as not cutting off an estate previously limited, but as merely naming an alternative limit to the duration of the estate.

The term, "conditional limitation," rather than "special limitation," is by some writers used to describe such an alternative limitation, but this use of the term "conditional limitation" is productive of much confusion, owing to the fact that the term is very generally used to describe a provision for an estate to arise in derogation of another estate upon the happening of a contingency, being either a "shifting use" or a "shifting executory devise," hereafter considered.58 The difference above stated between an estate on condition and one on special limitation has important practical results. Since, in the latter case, the contingency is the proper termination of the estate, after it has happened no estate can possibly remain in the grantee or lessee, and consequently, without any entry or equivalent act, the right of possession immediately reverts to the grantor or lessor.59 And so, while the right to take advantage of a condition cannot, at common law, be vested in one other than the grantor or lessor, or his heir, the transferee of a reversion, or a remainderman, after an estate in fee tail, for life, or for years, on special limitation, has always been entitled to take advantage of the termination of the estate by such limitation.60

But in Illinois it has been decided that the right of rescission for failure to furnish support, being ordinarily based on a presumption of fraud (ante note 41), there is no such right where the failure results from the grantee's death. Steblins v. Petty, 209

Sec. 91. Words appropriate to special limitation such words, introducing a limitation, being distinguished in the books from those suited for the creation of an estate on condition.61

An estate of this character is usually created by a grant or devise "until" a certain event takes place, or "while" or "so long as" an existing state of things shall endure, or by the use of other equivalent words;

58. Prof. John C. Gray (Restraints on Alienation Sec. 22, note 1) enumerates the more prominent writers using the term in the respective senses, showing that a minority only have used it to describe what we call a "special limitation."

Mr. Challis (Real Prop. 252, 253) calls what we call "special limitations," "determinable limitations," and adds: "They are not infrequently styled 'conditional limitations'; but this last phrase is commonly used in so many different senses that to make use of it at all is only to invite obscurity and confusion." Mr. Preston called such limitations "collateral limitations." 1 Preston, Estates, 42. The expression "proviso for cesser," or "clause of cesser," is also sometimes used, especially, it seems, in connection with estates tail. See Leake, Prop, in Land 217.